Top 10 Outbound and Inbound
Compliance Issues Webinar
August 21, 2012
Joseph Sanscrainte
Law Office of
Joseph W. Sanscrainte
212-626-6934
Top 10 Outbound and Inbound Issues
Ryan Thurman
Director of Sales & Marketing
866-362-5478 ext. 116
David van Everen 925-201-2014
VP, Online Marketing [email protected]
Session Objectives: Top 10 Issues
� Issue 1: FTC DNC Registry Data Book
� Issue 2: Latest numbers and stats on wireless usage in U.S.
� Issue 3: What “safe harbor” means for DNC compliance
� Issue 4: New FCC rules on prerecorded messages
� Issue 5: New FCC rules on predictive dialers
� Issue 6: New FCC rules on automated opt-outs
� Issue 7: Inbound calling myths . . . BUSTED!
� Issue 8: Preview dialing: what’s up with that?
� Issue 9: New FCC NPRM on PSA DNC List
� Issue 10: Enforcement trends
Webinar recording will be available on DNC.com
DNC and Wireless Overview
Issue 1: FTC National DNC Registry Data
� 207,264,658 million numbers on the registry
� Over 300 million cell phones. 50% of US has a smart phone.
� 13 States still holding out: 4.5 million unique State DNC numbers
� 3,537,200 ported cell phone numbers
� 1.6 million complaints.
� 40% of complaints are for pre-recorded calls
Poll: What type of dialers or calling strategies are in use today?
Hosted or cloud based?
DNC and Wireless Overview
Demise of the Outbound Call Center?
FTC Registrations Over Last 5 Years
2006 2007 2008 2009 2010
Entities who paid 6,824 6,242 4,618 3,923 3,383
5 or fewer area codes 58,816 59,337 46,559 40,406 34,206
Exempt entities 845 801 1,107 1,002 680
Issue 2: Latest numbers and stats on wireless usage in U.S
Poll: Fines for Calling Wireless Numbers?
Issue 3: To qualify for safe harbor, a seller must demonstrate that as part of its routine business practice it has:
� Established and written procedures to comply with the DNC rules
� Trained personnel in compliance procedures (including 3rd parties)
� Maintains and records a company specific DNC list
� Uses a process to employ the National DNC list
� Uses a process to prevent telemarketing to any DNC number
� Maintains records that document the compliance process
� Monitors and enforces compliance across the organization
� Follows 15 Day Update Rule for Wireless
� Follows 31 Day Update Rule for National DNC
NEW FCC RULES: BACKGROUND
• 2008: FTC changes its prerecorded rules
– prerecorded telemarketing messages require express written consent
– Opt-out via automated keypress or voice-activated mechanism
– Technology “agnostic” – doesn’t matter how you make the call; doesn’t matter if its to a landline or wireless
– Successive, 30 day, per campaign standard for abandonment
• January 2010: FCC NPRM
– FCC correctly concludes its prerecorded rules are different
– Proposed rules keep existing FCC framework – NOT agnostic
– “Rolling” v. “successive” abandonment measurement 8
ISSUE 4: PRED DIAL/PREREC CALLS TO CELL PHONES
• Old rule: no pred dial/prerec calls to cell phones w/out prior express consent
• New rule: FCC creates two categories: – Category 1: telemarketing pred dial/prerec calls to cell phones
– Category 2: all other pred dial/prerec calls cell phones
• Category 1 - FCC divides THESE calls into:– Calls that constitute telemarketing generally: prior express WRITTEN
consent required
– Telemarketing calls made by tax-exempt non-profit orgs – prior express consent (i.e., no writing) sufficient
– HIPAA calls
• Category 2 – “catch-all”– All pred dial/prerec calls to cells OTHER than above – consent only
– Informational, non-telemarketing calls9
Predictive Dialer Vendor Checklist
� Established, Proven
� Takes Compliance Seriously
� Has Compliance Partners
� Provides Essential Features:� Abandonment
� Safe Harbor
� Company DNC List
� State Regulations
� Compliance Reporting
� Phone Types
� Time of Day
• Market leader in cloud-
based contact center
software
• Founded 2001
• 1500+ customers
• 2 billion calls annually
• 100+ engineers
• Member of PACE
Association
• Multiple partners for
compliance services
ISSUE 4: PREREC CALLS TO RESIDENTIAL LINES
• Old rule: you need prior express consent to deliver prerec telemarketing call to residential line– UNLESS you have an EBR – then no consent required
– FTC removed EBR exemption in August, 2008 AND required express written consent
• New rule: FCC follows FTC rule– You can not rely on EBR when delivering a prerec
telemarketing call to a residential line
– must obtain express written consent for ANY such call
– FCC makes clear this ONLY applies to telemarketing, and NOT informational and non-telemarketing calls
– New rule does not apply to HIPAA calls11
ISSUE 5: ABANDONED CALL CHANGES
• Old rule: measure abandonment rate every 30 days across all calling campaigns– FTC requires measurement on a 30 day successive day
basis per campaign
• New rule: Same as FTC– Ok, almost . . . Seller has to disclose that the call was
for “telemarketing purposes” along with name and telephone number of the seller
12
ISSUE 6: AUTOMATED OPT-OUTS
• FTC rule: – PR TM calls that “could be answered by a person”
must have interactive voice or keypress opt-out
– PR TM calls that “could be answered by an answering machine” require toll-free # disclosure
• FCC rule: see above, but . . . – Unlike FTC, FCC requires opt-out during
ABANDONED CALL message
– Toll-free # disclosure must be made during PR TM messages that are in fact left on answering machines
13
IMPLEMENTATION?
• “Start” point: publication of OMB’s approval
• FCC establishes:– 30-day period for abandoned call rule
– 90-day period for opt-out mechanism for prerectelemarketing calls and abandoned messages
– 12-month period for phasing out EBR exemption for prerec telemarketing calls to residential lines
– 12-month period for implementing rule that prior express consetn be in writing for predictive dialer calls to cell phones
14
ISSUE 7: MYTHS REGARDING INBOUND CALLING
• MYTH: “I don’t have to worry about state telemarketer registration rules if I only do inbound calls.”
• FACTS:– 33 states require registration by telemarketers
– 25 of these states apply their rules to INBOUND calls
– Many exemptions apply, but many inbound programs need to register
• MYTH: FTC TSR does NOT apply to inbound calls
• FACTS:– Section 5(a) of the FTC Act gives FTC ability to enforce against “unfair”
and/or “deceptive” practices
– TSR may cover inbound calls based on type of offer being made
– TSR may cover inbound calls based on how calls are generated
– TSR covers “upsells”
15
ISSUE 8: PREVIEW DIALING
POLL: Preview Dialing falls under TCPA?
• 1991: TCPA is passed – “no person or entity may initiate any call [to a cell number] . . . using an automated telephone dialing system (ATDS).”
• 2003: FCC decides that a predictive dialer is an ATDS.
• So . . . “preview mode” in a dialer = ATDS? Devil is in the details . . .
• In 2003, FCC determined that any equipment that: 1) has the “capacity to dial numbers without human intervention”; and, 2) that can “dial thousands of numbers in a short period of time” is an ATDS.
• Last time I checked: 1) Preview mode requires human intervention; and 2) Preview mode has no abandoned calls –1 to 1 calling and no “thousands of numbers being called in short period.”
ISSUE 9: PUBLIC SAFETY DNC?
• Your government at work: as part of “Middle Class Tax Relief and Job Creation Act of 2012” the FCC has to . . . create a Do Not Call list for “public safety answering points” (PSAPs)
• DNC list ONLY for automatic dialing/robocalls to PSAPs (facilities designated to receive emergency “911” calls)
• There are 6100 PSAPs in the US (as per the National Emergency Number Association)
• NPRM requests information regarding . . . EVERYTHING:– No legislative history for Section 6507 of Middle Class Tax Relief Act
– FCC asks: “uh, aren’t there already rules prohibiting such calls?”
– FCC asks: “Seriously, a list for a few thousand numbers?”
– FCC asks: “Isn’t there ALREADY a list of such numbers?”
– FCC asks: “Can’t we just piggyback on the FTC’s DNC list?”
– FCC asks: “Do we REALLY want to widely disseminate a list of ALL emergency numbers in the United States? REALLY?” 17
ISSUE 10: ENFORCEMENT TRENDS
• Forwarding calls from land line to wireless line: who’s responsible?
• A word on political calling . . .
• A few rules to live by regarding bill collecting:– DO: make sure the people actually owe money
– DON’T: pretend that you’re with law enforcement
– DON’T: (and I can’t stress this enough) threaten to take away a consumer’s children if they don’t pay a debt!
• Business Opportunities:– Front and center for both FTC (new biz opp rule) and the states
• Taking advantage of people in financial distress– Stay away from: 1) offering small, short-term loans; and 2) not revealing
high cost fees and interest rates
– Watch out for programs charging up-front for lowering car payments
Questions ?
Special Offers:
� Free Wireless Number Report
� Free Compliance Report
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866-362-5478 ext. 116
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